The Indiana Court of Appeals has affirmed a criminal conviction for attempted possession of marijuana by a criminal defense attorney who had claimed his actions were legally justified in defense of a client. It is quite a tale.

The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant. His plan was to destroy the informant's credibility by showing that he was still dealing drugs. He arranged for two juveniles to purchase marijuana from the informant and assured the two that the conduct was legal.

He provided the juveniles with $200 to fund the purchase, recorded the serial numbers and arranged to tape the buy. The buy went down, but the juveniles were not totally trustworthy. They used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney did not take possession of the drugs, but told the juveniles to hold the evidence. Once again they proved less than trustworthy. They smoked it instead.

The attorney sought the $200 from the client's mother, telling her that it was a litigation cost.

The attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. As a result, he was charged with the crime.

The court rejected a number of contentions. The attorney did not stand on the same footing as a law enorcement official conducting an undercover drug buy:

In sum, [the attorney] asks this court to grant him the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy in an effort to discredit a witness against his client. The legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense [of] his client...This is not a close case."

Comments

He knew the identity of the confidential informant for the state. His plan was to destroy the credibility of the informant by showing he was still trafficking drugs. He arranged for two minors to buy marijuana from the informant and assured both that the conduct was lawful.

He argued that his conduct did not constitute a criminal offense and that there should be an exception to the culpability under criminal law for a defense lawyer who organizes a drug buy to discredit a witness against his client trial.

“Finally, Schalk makes other vague contentions in his argument on appeal related to due process and “disparate treatment.” But Schalk’s contentions on each of those constitutional claims are not supported by cogent argument or coherent legal analysis. A mere citation to constitutional provisions or legal precedent, without more, is insufficient to preserve an issue for appellate review. We are unable to decipher Schalk’s argument on those remaining issues, and, thus, these issues do not warrant our consideration.”

This is unfortunate as I actually think an interesting argument could be made on constitutional grounds had it been attempted.

Stephen

Posted by: FixedWing | Mar 3, 2011 1:44:27 PM

Hey,
Thanks! Great post you have written on "Defense Attorney Arranges Drug Buy To "Impeach" Informant; Criminal Conviction Affirmed". Really I can say that your post is very informative, I'll come across your blog again when you will update it with new.
Thanks,
Robert http://www.jrlaw.org/